No. 11-2009 __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________________________________________ BONNIE MARCUS and ROMAN WYPART, Plaintiffs/Appellees/Cross-Appellants, v. PQ CORPORATION, Defendant/Appellant/Cross-Appellee. __________________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania No. 2:07-cv-2075 Hon. John P. Fullam, United States District Court Judge (case currently assigned to Hon. Lawrence F. Stengel, United States District Court Judge) __________________________________________ BRIEF OF AMICUS CURIAE THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION IN SUPPORT OF PLAINTIFFS/APPELLEES/CROSS-APPELLANTS AND AFFIRMANCE __________________________________________ P. DAVID LOPEZ EQUAL EMPLOYMENT General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 131 M St. NE, Rm. 5NW10P Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4870 VINCENT BLACKWOOD James.Tucker@EEOC.gov Assistant General Counsel JAMES M. TUCKER Attorney Table of Contents Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . .ii Statement of Interest. . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of the Issues. . . . . . . . . . . . . . . . . . . . . . . . 2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . 3 I. Statement of Facts. . . . . . . . . . . . . . . . . . . .3 II. District Court Proceedings. . . . . . . . . . . . . . . 4 Summary of the Argument. . . . . . . . . . . . . . . . . . . . . 6 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 I. The Supreme Court's Decisions In Staub and Gross Do Not Undermine the Continuing Viability of the Subordinate Bias Theory of Liability In Claims of Age Discrimination Brought Under Section 4(a)(1) of the ADEA.. . . . . . . . . . . . . . . . . . . . . 8 II. The Supreme Court's Decision In Gross Does Not Alter this Court's Precedent Rejecting the Notion that a Plaintiff Bringing Suit Under Section 4(a)(1) of the ADEA Must Prove that Age Was the Sole Cause of the Adverse Employment Action.. . . . . . . . . . . . 19 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Certificate of Compliance Certificate of Service Table of Authorities Cases page(s) Abrams v. Lightolier, Inc., 50 F.3d 1204 (3d Cir. 1995). . . . . . . . . . . . . . . . . 12 Abramson v. William Patterson Coll. of N.J., 260 F.3d 265 (3d Cir. 2001). . . . . . . . . . . . . . . 11, 12 Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343 (2009). . . . . . . . . 2, 5, 9, 10, 21, 22 Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993). . . . . . . . . . . . . . . 9, 17, 19 Hemi Group, LLC v. City of New York, 130 S. Ct. 983 (2010). . . . . . . . . . . . . . . . . . . . 14 Jones v. Okla. City Pub. Sch., 617 F.3d 1273 (10th Cir. 2010). . . . . . . . . . . . . .10, 22 M.G., et al, v. A.I. DuPont Hosp. for Children, Nos. 09-1426, 09-3598, 09-4120, 2010 WL 3310720 (3d Cir. Aug. 24, 2010). . . . . . . . . . . . . . . . . . 17 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . . . . . . . . 10 McKenna, et al. v. City of Phila., No. 09-3567 (3d Cir. Aug. 17, 2011). . . . . . . . . . . 16, 17 Miller v. Cigna Corp., 47 F.3d 586 (3d Cir. 1995). . . . . . . . . . . . . 9, 16, 19 Roebuck v. Drexel Univ., 852 F.2d 715 (3d Cir. 1988). . . . . . . . . . . . . . . . . 12 St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). . . . . . . . . . . . . . . . . . 19 Simmons v. Sykes Enters., Inc., No. 09-1558, 2011 WL 2151105 (10th Cir. June 2, 2011). . . 18 Smith v. City of Allentown, 589 F.3d 684 (3d Cir. 2009). . . . . . . . . . . . . . . 10, 11 Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011). . . . . . . . . . . . 2, 5, 13, 14, 15 Wojtanek v. Dist. No. 8, No. 11-1790, 2011 WL 3438335 (7th Cir. Aug. 8, 2011). . . 19 Statutes 29 U.S.C. § 621 et seq.. . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 623(a)(1). . . . . . . . . . . . . . . . . . . . . . . . 8 Rules Fed. R. App. P. 29(a). . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Interest The Equal Employment Opportunity Commission is the federal agency charged by Congress with responsibility for interpreting, administering, and enforcing our nation's federal prohibitions on employment discrimination, including the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"). As a federal agency, the Commission is authorized to participate as amicus curiae in the courts of appeals. Fed. R. App. P. 29(a). This Court has long recognized that in order to prove but-for causation, as is required to show a violation of section 4(a)(1) of the ADEA, a plaintiff may rely on the subordinate bias, or "cat's paw," theory of liability to show that the contested adverse action was undertaken because of the victim's statutorily-protected characteristic. This Court has also long held that while a plaintiff is required to prove that age was the but-for cause of the contested adverse action in order to establish a violation of section 4(a)(1), he is not required to show that age was the sole cause of the adverse action. This appeal presents the question of whether this Court's precedent on these issues is still good law in light of the Supreme Court's recent rulings in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009), and Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011). Because of the importance of this issue to the effective enforcement of the ADEA and other federal antidiscrimination statutes, the Commission respectfully offers its views to the Court. Statement of the Issues<1> I. Whether the Supreme Court's decisions in Gross and Staub disturb this Court's precedent permitting a plaintiff's use of the subordinate bias, or "cat's paw," theory of liability to prove a violation of section 4(a)(1) of the ADEA. II. Whether Gross disturbs this Court's long-held view that a plaintiff may establish a violation of section 4(a)(1) of the ADEA by showing that the victim's age was the but-for cause of the contested adverse employment action, even if his or her age was not the sole cause of that adverse action. Statement of the Case I. Statement of Facts<2> In May 2005, PQ Corporation implemented a reduction in force ("RIF") that resulted in the termination of twenty-nine employees. District Court Docket No. ("R.") 209 at 2. At the time, Bonnie Marcus and Roman Wypart had been employed by PQ for several years, as research chemists. R.209 at 2. Marcus was 60 years old, and Wypart was 56. R.209 at 2. Marcus, Wypart, and two others who were also over 55 years old were the only employees in their department to lose their jobs as a consequence of the RIF. R.209 at 2. After their termination, the plaintiffs' duties were assigned to younger employees. R.209 at 2. PQ asserted that the plaintiffs were selected for inclusion in the RIF because the funding for the projects they were working on had been eliminated. R.209 at 2. To the contrary, however, some of the plaintiffs' projects did continue after their termination, the plaintiffs were selected for termination before any decision had been made about which projects would continue after the RIF, and younger employees were retained despite the funding for their projects coming from the same source as the funding for the plaintiffs' projects. R.209 at 2-3. II. District court proceedings The plaintiffs brought suit alleging they were fired because of their age. The first trial of their claims resulted in a mistrial after the jury was unable to reach a verdict. R.209 at 1. After a second trial, the district court instructed the jury that the plaintiffs must prove that age was the "but-for" cause of their termination. The court explained that they must show that "their age was a decisive factor in the decision to fire them," adding that that "the plaintiffs do not have to prove that their age was the only reason they were fired." Apx. 1003-04. At a sidebar convened by the court to discuss whether it may have missed any instructions, the plaintiffs' counsel informed the court that it had not provided a subordinate bias, or "cat's paw," instruction as had been previously requested by the plaintiffs. Apx. 1012-13. When the court resumed instructing the jury, it stated that the plaintiffs had argued that certain employees had indicated they held an ageist bias and were involved in the "chain of decisions" leading up to the subject terminations, and that "[o]bviously, if you conclude that an employee who's had a role in the final decision to terminate the plaintiffs, was shown to have been inclined to discriminate on the basis of age, that would be an important factor to consider."<3> Apx. 1015. The jury found in favor of both plaintiffs on their age discrimination claims. R.209 at 1. The court denied PQ's post-verdict motion for judgment as a matter of law or a new trial, R.209 at 1-5, and PQ appealed, R.220. In its opening brief on appeal, PQ argues that the district court erred in giving a subordinate bias, or "cat's paw," instruction to the jury because as a result of the Supreme Court's recent decisions in Gross v. FBL Financial Services, Inc., 129 S. Ct. 2343 (2009) and Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), such a theory of liability is unavailable to ADEA claimants. Id. at 28. This, PQ posits, is because the "but for" causation standard Gross announced for ADEA claimants is inconsistent with a subordinate bias theory of liability where there are multiple proximate causes of the allegedly discriminatory adverse action. Id. at 29-30. PQ also suggests that the court's jury instructions were erroneous because they failed to convey that age must be the "sole" cause of the challenged action. Id. at 23-24. PQ asserts that Gross stands for the proposition that age must be "the reason" and "the but- for" cause, but the court's instructions "allowed for liability if age merely played a part in PQ's decision." Id. at 23 (emphasis by PQ). Summary of the Argument The Supreme Court's recent decisions in Gross and Staub do nothing to disturb this court's precedent holding that an employer is liable for discrimination under the ADEA, even if the ultimate decisionmaker was not motivated by age, if the challenged action was caused by the bias of a subordinate. Furthermore, contrary to defendant's argument, Gross does not require a plaintiff to prove that age was the sole cause of the challenged decision in order to prevail on an ADEA claim. PQ's arguments to the contrary are based on a fundamental misunderstanding of those decisions. Prior to Gross and Staub, it was well established in this Court that a plaintiff attempting to establish a violation of section 4(a)(1) of the ADEA could rely upon the subordinate bias, or "cat's paw," theory of liability. It is also well established in this Court that while a plaintiff is required to prove that age was the but-for cause of the contested adverse action, he or she is not required to prove that age was the sole cause of that action. Neither Gross nor Staub preclude the continuing availability of the "cat's paw" subordinate bias theory of discriminatory motivation to plaintiffs in ADEA claims. Staub identifies the general principles behind the theory, but does not even suggest, let alone hold, that a plaintiff prosecuting a violation of section 4(a)(1) of the ADEA may not rely upon the subordinate bias theory of liability. Similarly, Gross's recognition that a plaintiff seeking to prove a violation of section 4(a)(1) must show that age was the but-for cause of the challenged adverse employment action is no different from the causation standard long applied to such claims by this Court, and, therefore, does nothing to disturb this Court's precedent holding that such plaintiffs may rely upon a subordinate bias theory in order to meet such a standard. Nor does Gross contravene this Court's recognition that a plaintiff is not required to establish that age was the sole cause of the adverse employment action in order to show a violation of the statute. For these reasons, the Commission respectfully requests that the Court reject PQ's contrary assertions and affirm the ruling of the district court. Argument I. The Supreme Court's Decisions In Staub and Gross Do Not Undermine the Continuing Viability of the Subordinate Bias Theory of Liability In Claims of Age Discrimination Brought Under Section 4(a)(1) of the ADEA. Section 4(a)(1) of the ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual or to otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). In Gross, the Supreme Court interpreted this language to require that a plaintiff prove that age was a but-for cause of the challenged employment action in order to establish a violation of section 4(a)(1). Observing that "[s]tatutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose," the Court stated that "the ordinary meaning of the ADEA's requirement that an employer took an adverse action 'because of' age is that age was the 'reason' that the employer decided to act." Gross, 129 S. Ct. at 2350 (citations omitted). The Court concluded, "[i]t follows, then, that under § 623(a)(1), the plaintiff retains the burden of persuasion to establish that age was the 'but-for' cause of the employer's adverse action." Id. at 2351. This Court has long applied a similar standard to claims of age discrimination under section 4(a)(1). This court has consistently held that claims such as those at issue in this case, which are not based on the mixed-motive theory rejected for ADEA claims by Gross, are subject to a but-for causation standard. See, e.g., Miller v. Cigna Corp., 47 F.3d 586, 595-98 (3d Cir. 1995) (en banc). In Miller, this Court recognized that plaintiffs bringing non-mixed-motive claims under section 4(a)(1) have "the burden of persuading the trier of fact by a preponderance of the evidence that there is a 'but-for' causal connection between the plaintiff's age and the employer's adverse action-i.e., that age 'actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome' of that process." Id. at 595-96 (quoting in part Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993)). This Court has expressly recognized that Gross does nothing to disturb this precedent. In Smith v. City of Allentown, this Court concluded that Gross does not displace circuit precedent applying in ADEA cases the burden-shifting analysis first announced by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because under the McDonnell Douglas analysis the plaintiff always bears the burden of proving that age was the but-for cause of the contested adverse employment action, as is required by Gross. 589 F.3d 684, 690-91 (3d Cir. 2009). This Court's understanding of the impact of Gross on non-mixed-motive claims under section 4(a)(1) is further supported by the Supreme Court's statement in Gross that "[t]here is no heightened evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion that age was the 'but-for' cause of their employer's adverse action . . . and we will imply none." Gross, 129 S. Ct. at 2351 n.4. See also Jones v. Okla. City Pub. Sch., 617 F.3d 1273, 1277-78 (10th Cir. 2010) (rejecting employer's argument that Gross created a heightened standard of liability for non-mixed-motive ADEA claims brought under section 4(a)(1)). It is equally well established in this Court that one method by which a plaintiff may prove that a discriminatory motive was the but- for cause of the contested adverse employment action is through use of the subordinate bias, or "cat's paw," theory of liability-that is, by establishing that an individual "exhibiting discriminatory animus influenced or participated in the decision" to take the contested adverse action. Abramson v. William Patterson Coll. of N.J., 260 F.3d 265, 285- 86 (3d Cir. 2001). In Abramson, this Court addressed a Title VII religious discrimination claim that was subject to a but-for causation standard. See id. at 281-82 (applying McDonnell Douglas burden- shifting paradigm); cf. Smith, 589 F.3d at 691 (recognizing McDonnell Douglas applies a but-for causation standard). In so doing, this Court explicitly rejected the district court's conclusion that the proper focus needed to be on evidence that the decisionmaker himself harbored discriminatory animus toward the plaintiff. Abramson, 260 F.3d at 285-86. Instead, this Court noted, there was evidence that two other individuals who harbored a discriminatory animus toward the plaintiff had counseled the decisionmaker prior to his decision. Id. at 285-86. This Court recognized that the evidence of these two biased individuals' communications with the decisionmaker would support a jury's conclusion that the ultimate decision was sufficiently tainted by their discriminatory bias to establish a violation of the statute. Id. at 286. In support of that conclusion, Abramson cited an earlier circuit decision in an ADEA suit, Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995), as standing for the proposition that, "if plaintiff's supervisor participated in [the] decision to terminate him, even though [the] president of [the] company formally terminated him, evidence of [the] supervisor's age-related animus would be relevant in determining if [a] discriminatory motive [was] at play." Id. This Court concluded that "'it is plainly permissible for a jury to conclude that an evaluation at any level, if based on discrimination, influenced the decisionmaking process and thus allowed discrimination to infect the ultimate decision.'" Id. at 286 (quoting Roebuck v. Drexel Univ., 852 F.2d 715, 727 (3d Cir. 1988)). Accordingly, this Court has long recognized that an employer may be held liable under the ADEA for employment decisions caused by a biased subordinate even if the ultimate decisionmaker did not share that bias. The Supreme Court's decision in Staub does nothing to disturb this precedent. In Staub, the Supreme Court held that the plaintiff could establish that his employer violated the Uniformed Services Employment and Reemployment Rights Act ("USERRA") by showing that the decision to fire him was caused by input from a biased subordinate who intended to cause his termination, even if the ultimate decisionmaker was not similarly biased. 131 S. Ct. at 1194. Unlike section 4(a)(1) of the ADEA, the provision of USERRA at issue in Staub does not require a plaintiff to prove that discrimination was the but-for cause of the contested adverse employment action. See id. at 1190-91. In that context, the Court noted that congressionally-created intentional torts such as USERRA and Title VII "adopt[] the background of general tort law" and therefore "generally require that the actor intend the consequences of an act, not simply the act itself." Id. at 1191 (citations, emphasis and internal punctuation omitted). The Court recognized that it was "axiomatic under tort law that the exercise of judgment by the decisionmaker does not prevent the earlier agent's action (and hence the earlier agent's discriminatory animus) from being the proximate cause of the harm." Id. at 1192. "Proximate cause requires only 'some direct relation between the injury asserted and the injurious conduct alleged,' and excludes only those 'link[s] that are too remote, purely contingent, or indirect.'" Id. (alteration in original) (quoting in part Hemi Group, LLC v. City of New York, 130 S. Ct. 983, 989 (2010)). Rejecting the notion that the "ultimate decisionmaker's exercise of judgment automatically" severs the link to the subordinate's bias, the Court recognized that while "[t]he decisionmaker's exercise of judgment is also a proximate cause of the employment decision," this posed no problem because "it is common for injuries to have multiple proximate causes." Id. (emphasis in original) (citation omitted). Describing how this phenomenon may manifest itself in employment discrimination cases, the Court explained that "[a]n employer's authority to reward, punish, or dismiss is often allocated among multiple agents. The one who makes the ultimate decision does so on the basis of performance assessments by other supervisors." Id. at 1192-93. Summarizing how subordinate bias may lead to liability, the Court stated that "[t]he employer is at fault because one of its agents committed an action based on discriminatory animus that was intended to cause, and did in fact cause, an adverse employment action." Id. at 1193. Accordingly, the Court held that "if a [subordinate] performs an act motivated by [a prohibited] animus that is intended by the subordinate to cause an adverse employment action, and that act is the proximate cause of the ultimate employment action, then the employer is liable under USERRA." Id. at 1194 (emphasis in original). The analysis in Staub is equally applicable to the claims in this case brought under a but-for causation standard and confirms that the theory of subordinate bias previously applied to such claims by this Court remains available. The agency principles that form the core of the Court's analysis apply with equal force to claims requiring a showing of but-for causation. Id. at 1190-94. Recognizing an employer's liability under section 4(a)(1) for an adverse employment action caused by the actions of a biased subordinate who intended to cause the plaintiff to suffer an adverse employment action, where the adverse action would not have occurred but for the subordinate's biased action, fully comports with both the but-for causation standard required in section 4(a)(1) claims, and Staub's description of the subordinate bias theory. Staub does not conflict with this Court's ample precedent establishing the availability of the subordinate bias theory of liability to plaintiffs charged with proving but-for causation, including those bringing claims under section 4(a)(1) of the ADEA. In fact, this Court recently held, in the context of a Title VII suit where the plaintiff was required to prove but-for causation, that the district court's but-for causation jury instruction comported with both Abramson and Staub. McKenna, et al. v. City of Phila., No. 09-3567, Slip. op. at 16-17 (3d Cir. Aug. 17, 2011). In McKenna, a case involving a Title VII retaliation suit, this Court addressed whether the district court's jury instruction amounted to reversible error given Staub's recognition that the subordinate bias theory requires a showing of proximate cause, yet the court's jury instruction made no mention of proximate cause. Id. at 17. In relevant part, the district court instructed the jury that "'you must decide whether the plaintiff's protected activity . . . had a determinative effect on the allegedly materially adverse action. Determinative effect means that if not for the plaintiff's protected activity, the allegedly materially adverse action would not have occurred.'" Id. (citation omitted). This Court held that the district court's "determinative effect" and "if not" jury instructions were sufficient to require the jury to find but-for causation. Id.; see also Miller, 47 F.3d at 595-96 (recognizing that plaintiffs bringing claims under section 4(a)(1) of the ADEA have "the burden of persuading the trier of fact by a preponderance of the evidence that there is a 'but-for' causal connection between the plaintiff's age and the employer's adverse action-i.e., that age 'actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome' of that process") (quoting in part Hazen Paper, 507 U.S. at 610); M.G., et al, v. A.I. DuPont Hosp. for Children, Nos. 09-1426, 09-3598, 09-4120, 2010 WL 3310720, at **4 (3d Cir. Aug. 24, 2010) (unpub.) (describing the but-for causation standard as "the harm would not have occurred if not for the defendant's [conduct]") (emphasis added). In McKenna, this Court observed that at the time the district court gave this jury instruction Staub had not been decided so Abramson was the controlling precedent, and in Abramson the Court "did not explicitly characterize the applicable test as one of proximate cause." Slip op. at 17. This Court concluded that the jury instruction nevertheless "incorporated the concept of proximate cause," and while the instruction did not "precisely hew to the proximate cause language in Staub . . . the variation was harmless." Id. For the aforementioned reasons, Staub provides no basis for disrupting this Court's precedent recognizing the subordinate bias theory of proof for establishing that age was the but-for cause of an adverse action. We note that the other courts of appeals that have addressed the impact of Staub on ADEA claims have reached the same conclusion. As the Tenth Circuit recently recognized, the subordinate bias theory of liability remains available after Staub in ADEA disparate treatment cases. Simmons v. Sykes Enters., Inc., No. 09-1558, 2011 WL 2151105, at *4 (10th Cir. June 2, 2011). This, the court observed, is because "despite [the] distinction [between the ADEA and USERRA], the underlying principles of agency upon which subordinate bias theories are based apply equally" to USERRA and the ADEA. Id. The court added that "[i]ndeed, [it] has applied the subordinate bias doctrine to cases arising under both Title VII . . . and the ADEA."<4> Id. Similarly, the Seventh Circuit has implicitly affirmed the continuing viability of the subordinate bias theory in ADEA claims post-Staub. See Wojtanek v. Dist. No. 8, No. 11-1790, 2011 WL 3438335, at *4 (7th Cir. Aug. 8, 2011) (unpub.) (assessing, after discussing Staub and Gross, whether the plaintiff's evidence satisfies the subordinate bias theory of liability in his ADEA claim, and concluding that the evidence was insufficient to prove that but for the biased subordinate's conduct the employer would not have taken the contested adverse employment action). II. The Supreme Court's Decision In Gross Does Not Alter this Court's Precedent Rejecting the Notion that a Plaintiff Bringing Suit Under Section 4(a)(1) of the ADEA Must Prove that Age Was the Sole Cause of the Adverse Employment Action. As discussed previously, it has long been established in this Court that age may be the "but-for" cause of an employment action even if it is not the sole cause of that action. See Miller, 47 F.3d at 595-98. Despite PQ's suggestion to the contrary, Gross did not increase a plaintiff's burden of proof under the ADEA by requiring a plaintiff to show that "age was 'the reason' and 'the but-for' cause" of the contested adverse employment action, see PQ brief at 23-24 (emphasis added by PQ). In Miller, this Court, sitting en banc, reiterated its earlier conclusion that in claims brought under section 4(a)(1) of the ADEA the plaintiff is required to establish that age played a determinative, but not necessarily the only, role in the defendant's decisionmaking process. 47 F.3d at 595-98. This Court explicitly rejected the employer's argument that plaintiffs bringing non-mixed-motive claims under section 4(a)(1) were required to prove that age was the sole factor considered by the employer in its decisionmaking process. See id. The Court stated that it found support in Supreme Court precedent for its "earlier conclusion that 'because of' does not mean 'solely because of,'" and held that the district court's jury instruction requiring the plaintiff to prove that age was the "sole cause" and "sole factor" constituted reversible error. Id. at 595, 597-98 (citing in relevant part Hazen Paper and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993)). Miller correctly recognized that there is no inconsistency in requiring a plaintiff to satisfy the but-for causation requirement while not requiring a plaintiff to show that age was the sole cause of the alleged discriminatory act. Gross does nothing to disturb this well-established precedent, and PQ does nothing-other than twice adding its own selective emphasis to Gross's use of the word "the"-to explain how Gross does so. Gross held that a plaintiff may not rely on a mixed-motive theory of liability- where there are multiple factors involved in the employer's decisionmaking process, and age plays less than a determinative role in that process-to establish a claim of age-based disparate treatment in violation of section 4(a)(1). 129 S. Ct. at 2350. However, in Gross the Supreme Court did not even suggest, let alone hold, that it was redefining the evidentiary contours of what was required of a plaintiff to prove a non-mixed motive claim under section 4(a)(1). All Gross did was reaffirm what was already settled law in this Court-that a plaintiff prosecuting a claim under section 4(a)(1) is required to prove that age was the determinative, but-for cause of the contested adverse employment action. Id. As such, Gross does nothing to disturb this Court's well-established precedent holding that there is no sole cause requirement for claims of age discrimination under section 4(a)(1). The only comment offered by the Supreme Court on what a plaintiff must show to meet the but-for standard was mentioned in a footnote, in the context of whether direct or circumstantial evidence would be required when employing the mixed-motive theory of liability to establish a violation of section 4(a)(1)-an approach the Court squarely rejected in its holding. The Court simply stated that "[t]here is no heightened evidentiary requirement for ADEA plaintiffs to satisfy their burden of persuasion that age was the 'but-for' cause of their employer's adverse action . . . and we will imply none." Gross, 129 S. Ct. at 2351 n.4. This in no way supports defendant's suggestion that the Supreme Court was implicitly heightening the evidentiary burden on plaintiffs by requiring them to prove under section 4(a)(1) that age was the sole cause of the contested adverse employment action. We note that the only court of appeals to have addressed this question has concluded that Gross does not require an ADEA plaintiff to show that age was the sole cause of the contested adverse employment action. See Jones, 617 F.3d at 1277-78 (rejecting employer's argument that Gross created a sole-cause standard of liability for claims brought under section 4(a)(1)). Simply put, Gross provides no support for PQ's undeveloped assertion that this Court's en banc interpretation of Hazen Paper and Hicks to preclude the sole cause requirement is no longer on sound footing post-Gross. Conclusion For the foregoing reasons, the Commission respectfully requests that the Court affirm the district court's denial of PQ's motion for judgment as a matter of law or a new trial. Respectfully submitted, P. DAVID LOPEZ General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT BLACKWOOD Assistant General Counsel s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Vermont Bar No. 3729 Certificate of Compliance I hereby certify that the foregoing brief complies with the type- volume requirements set forth in Federal Rules of Appellate Procedure 29(d) and 32(a)(7)(B). This brief contains 4,511 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Service I hereby certify that on September 6, 2011, I electronically filed the foregoing brief with the Clerk of the Court for the United States Court of Appeals for the Third Circuit by using the Court's CM/ECF system. I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the Court's CM/ECF system. s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov Certificate of Identically Filed Briefs, Virus Check, and Bar Membership I hereby certify that the text of the electronically filed version of the brief of amicus curiae the Equal Employment Opportunity Commission, filed with this Court via the Court's CM/ECF system on September 6, 2011, is identical to the text of the hard copies filed with the Court. I additionally certify that the electronic version of the brief was submitted to a virus check using Trend Micro OfficeScan version 10.0 and that no virus was detected. I also certify that, as an attorney of the federal government and representing a federal agency, I am not required to be a member of the bar of this Court. s/ James M. Tucker JAMES M. TUCKER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, Rm. 5NW10P Washington, D.C. 20507 (202) 663-4870 James.Tucker@EEOC.gov ********************************************************************************** <> <1> The Commission takes no position on any other issue raised in this appeal. <2> This short statement of facts is taken from the district court's summary of the evidence presented at trial in its memorandum denying defendant PQ Corporation's motions for judgment as a matter of law or a new trial. <3> In its ruling on the parties' post-trial motions, the district court expressed doubt over whether this was in fact a subordinate bias instruction. See R.209 at 4 ("Whether or not this was a "cat's paw" instruction, . . . I believe that it accurately summarized the positions of the parties and was relevant for the jury to consider as part of whether age discrimination was the reason for the plaintiffs' termination."). <4> PQ incorrectly characterizes Simmons as providing support for its contention that Staub renders the subordinate bias theory inapplicable in ADEA claims. See PQ brief at 29. As described above, however, it is beyond question that the Tenth Circuit held in Simmons that the subordinate bias theory of liability remains available to ADEA plaintiffs post-Staub.